The opinion of the court was delivered by: David N. Hurd United States District Judge
Plaintiff has filed an application for attorney's fees and costs pursuant to 42 U.S.C. § 1988 (Docket No. 310). Defendants have opposed. (Docket No. 311). The application was taken on submission without oral argument.
Costs other than attorney's fees "should be allowed to the prevailing party." Fed. R. Civ. P. 54(d). Pursuant to 42 U.S.C. § 1988, attorney's fees may be awarded to a prevailing party in, inter alia, civil rights litigation as part of the costs imposed.
Attorney's fees are awarded by determining a presumptively reasonable fee, reached by multiplying a reasonable hourly rate by the number of reasonably expended hours. See Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). The reasonable hourly rate should be "'what a reasonable, paying client would be willing to pay' given that such a party wishes 'to spend the minimum necessary to litigate the case effectively.'" Id. (quoting Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F3d. 110, 112, 118 (2d Cir. 2007), amended on other grounds by 522 F.3d 182 (2d Cir. 2008)). This Circuit's "forum rule" generally requires use of "the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Id. (internal quotations omitted); Picinich v. United Parcel Serv., No. 5:01-CV-01868, 2008 WL 1766746, at *2 (N.D.N.Y. Apr. 14, 2008) (McCurn, Sr. J.). Only "in the unusual case" will a prevailing plaintiff be able to demonstrate that selection of counsel outside the district at a higher rate was "reasonable under the circumstances." Simmons, 575 F.3d at 175 (internal quotations omitted).
The prevailing hourly rates in this district, which are what a reasonable, paying client would be willing to pay, are "$210 per hour for an experienced attorney, $150 per hour for an attorney with more than four years experience, $120 per hour for an attorney with less than four years experience, and $80 per hour for paralegals." Picinich, 2008 WL 1766746, at *2. Additionally, it is customary in this district to allow only one-half the hourly rate for travel time. Lewis v. City of Albany Police Dep't., 554 F. Supp. 2d 297, 299 (N.D.N.Y. 2008), aff'd, No. 08-2722-CV, 2009 WL 1256657 (2d Cir. May 7, 2009).
Further, an attorney's fee should be limited to those claims in which the plaintiff achieved success. Hensley v. Eckerhart, 461 U.S. 424, 430, 103 S.Ct. 1933, 1938 (1983). Unsuccessful claims must be eliminated and the attorney's fee claim reduced. Barfield v. New York City Health & Hosp. Corp., 537 F. 3d 132,152 (2d Cir. 2008).
Plaintiff seeks attorney's fees of $351,529.25 ($330,291.25 - A.J. Bosman, Esq.; $21,238.00 - Kernan and Kernan, P.C.) plus costs of $17,405.04 ($16,750.02 - A.J. Bosman, Esq.; $655.02 - Kernan and Kernan, P.C.) for a total of $368,934.29. Plaintiff also seeks an upward adjustment of $25,000.00. Defendants oppose the application as seeking excessive hours, unreasonable hourly rates, duplicative fees, and unnecessary costs. Defendants also request a reduction based upon plaintiff's limited success.
The submissions have been reviewed and the above standard has been applied. FIRST: The $5,240.00 claim for secretarial services is disallowed.
SECOND: An hourly rate of $210.00 per hour (legal work), and $105.00 per hour (travel) is applied to A.J. Bosman, Esq. This results in a total attorney fee claim reduction of $72,923.50 ($72,735.00 (legal work) and $188.50 (travel)).
THIRD: Some of the legal work hours claimed are excessive and duplicative. The A.J. Bosman, Esq., legal work claim is reduced by 215 hours, and the Kernan and Kernan, P.C. legal work claim is reduced by 34 hours. This results in a total attorney fee claim reduction of $51,440.00 (215 hrs. x $210.00 = $45,150.00 - A.J. Bosman, Esq.; and 34 hrs. x $185.00 = $6,290.00 - Kernan and Kernan, P.C.).
FOURTH: Some of the costs claimed are excessive and unnecessary. This results in a total cost claim reduction of $4,797.72 ($4,615.22 - A.J. Bosman, ...